EFTA01084195.pdf

4/, rigUIL9 COMO. • PelSovta 01 Malicious Prosecution and the Litigation Privilege by Tcd Babbitt The litigation privilege is an absolute or continuation of an original criminal or civil judicial privilege which protects attorneys and proceeding is an act "occurring during the course of litigants because of wrongful acts taken in a judicial proceeding," and having "some relation the course of and relating to litigation in to the proceeding," malicious prosecution could Florida It was first recognized in Florida never be established if causing the commencement in 1907 in Myers v Hodges, 44 So. 357 (Fla. 1907). It was or continuation of an original proceeding against the extended i Levin, Afiddlebrooks. Mabie, Thomas, Mayes & plaintiff were afforded absolute immunity under the Mitchell, v. U.S. Firerns. co., 639 So. 2d 606 (Fla. 1994) litigation privilege. If the litigation privilege could beyond defamatory statements of slander or libel. In Levin at apply to bar a malicious prosecution action, this would 608 the Supreme Court held: mean that the tort of malicious prosecution would be We find that absolute immunity must be afforded to any effectively abolished in Florida — or, at the very act occurring during the course of a judicial proceeding, least. eviscerated beyond recognition. regardless of whether the act involves a defamatory The Fourth District cited a similar case in the Fifth Distric statement or other rortious behavior such as the alleged t, Wright v Yurko,446 So. 2d 1162 (Fla. 5th DCA 1984) as well misconduct at issue, so long as the act has some relation as the Second District holding in Olson v. Johnson, 961 to the proceeding... Participants [must] be free to use So. 2d 356 (Fla. 2nd DCA 2007). their best judgment in prosecuting or defending a In refusiUg to follow the Third District's opinion in Wolfe, lawsuit without fear of having to defend their actions in supra, the Fourth District in Fisher, supra, makes a compe a subsequent civil action for misconduct. lling argument that the Supreme Court's broad language in Levi,,, The Florida Supreme Court extended the privilege in supra, was not intended to essentially eliminate Echevarria, McCalla, Rayner, Barrett & &rippler v. Cole, 950 malicious prosecution cases in Florida. At 1208, the Fourth District holds: So. 2d 380 (Fla. 2007) when it declared at 384: As a practical matter, such a broad application of The litigation privilege applies across the board to the litigation privilege would mean that a malicious actions in Florida, both to common-law causes of action, prosecution would rarely, if ever, be actionable. Indeed, those initiated pursuant to a statute or of some other it is difficult to envision how a malicious prosecution origin. claim would ever be actionable where the original In Wolfe v Foreman, 128 So. 3d 67 (Fla. 3rd DCA 2013) proceeding was a civil lawsuit. the issue was whether the litigation privilege applied to the The Florida Supreme Court has declared that it "does filing of a cause of action based on a claim of malicious not intentionally overrule itself sub sileatio."Putyear prosecution. In essence the question was whether the filing of v. ,grate, 810 So. 2d 901, 905 (Fla. 2002). If the the allegedly malicious complaint was itself protected by the litigation privilege could be applied to bar a malicious litigation privilege. Since the basis of malicious prosecution is the prosecution action, this would mean that the Florida malicious filing of a lawsuit without probable cause, a holding Supreme Court silently eviscerated the longstanding that such a filing was absolutely privileged would bar all causes common law tort of malicious prosecution. Had the of action for malicious prosecution in Florida. In Wolfe, supra, Florida Supreme Court truly meant for the litigation at 70, the Third District concluded that the malicious filing of a privilege to immunize conduct that would otherwise complaint was, indeed, protected by the litigation privilege even constitute malicious prosecution under the common law. if that effectively barred all actions for malicious prosecution in one would have expected the court to say so explicitly. Florida The Court held: Because the Florida Supreme Court has clearly and Cotnniencement or continuation of an original judicial unambiguously stated, not once, but twice, that the litigation proceeding is an element of malicious prosecution, a privilege applies to all causes of actions, and specifically longstanding tort with ancient roots. It is unfathomable articulated that its rationale for applying the privilege so broadly that the Florida Supreme Court intended to cloak the was to permit the participants to be "free to use their best commencement or continuation of a judicial proceeding judgment in prosecuting or defending a lawsuit without fear with absolute immunity when such conduct occurs as an of having to defend their actions in a subsequent civil action element of the ton of malicious prosecution. for misconduct," we are obligated to conclude that the act The Fourth District in Rivernider v. Meyer, 174 So. 3d 602 complained of here — the filing of the complaint — is protected (Fla. Fourth DCA 2015) and in Edwards v Epstein and by the litigation privilege. Thus, the trial court properly granted a Rothstein, 40 Fla. L Weekly D2550 (Ha. 4th DCA Nov. 12, 2015) judgment on the pleadings for Wolfe's cause of action against the reaffirmed its holding in Fischer, supra, and has now three times Miami Lawyers for malicious prosecution. certified conflict with Wolfe to the Florida Supreme Court. In Fisher v. Debrincat, 169 So. 3d 1204 (Fla. Fourth DCA Three out of the five District Courts have refused to follow 2015) the Fourth District Court of Appeals refused to follow the Third District's opinion in We, supra, which essentially Wolfe, supra, and held that a malicious prosecution action eliminated the tort of malicious prosecution in Florida on was not barred by the litigation privilege. At 1207, the Fourth the basis of the litigation privilege. While the ultimate decision rests District held: with the Supreme Court, it is unlikely Wolfe will stand. In our view, Wolfe went too Sr in its application of the litigation privilege. Because the commencement Vettratam 2016 EFTA01084195